​Copyright Infringement: Is There a Claim?

Do you have grounds for a copyright claim?

By Emma Meakin

Is someone utilising your work as their own or manufacturing it without your permission? If so, there may be an infringement claim.

Copyright exists to protect your work in whatever medium you have utilised. However in today’s internet age work is easily copied, reused or republished without permission - at times without people knowing that they’re breaching copyright.

Where to Begin?

Before considering whether you have a claim or not, you need to consider ownership. When considering the merit of a claim, the court will always consider whether you own the copyright. You need to, therefore, be able to demonstrate that you do. This can be done by demonstrating to the court you are the original author or creator of the work, for example providing preliminary sketches, draft works, or prototypes.

Has Your Work Been Misused?

Section 16 of the Copyright, Design and Patent Act 1988 (CDPA) allows that the owner of the right may reproduce, publish, provide to the public or amend the work in any way they wish. Therefore, you can do what you wish with your work - from mass reproduction to releasing only one copy to the world. You also have the right to sell, licence and commercially exploit the asset.

This is an exclusive right. The misuse by another person of this exclusive right will give rise to a claim, provided that it is within the UK. If you haven’t authorised use of your work by another, then they’re abusing your rights and a civil claim may be viable.

It’s a Strict Regime

The CDPA applies a strict regime to copyright infringement. It’s not necessary for the whole work to be copied, only a substantial part. So, if you were to copy a single line of a poem, and that line comprises a significant section of the piece, you have infringed copyright.

If your work is covered under the Literary, Dramatic, Musical or Artistic works (LDMA) titlesand it’s been reproduced, the CDPA 1988 provides protection to the owner; it seeks to stop any reproduction without authorisation in any way, shape or form. This includes, for example, a 2D sketch you may have produced being translated into a 3D model by another without your permission.

So do you think your work has been adapted in some way? If the answer is yes, you may have a claim.

Adaptations of a piece or literary or dramatic work include the translation into a foreign language, creation of a play or a cartoon based on the work. If a musical work is created into a differing arrangement, it’s also classed as copied.

Infringing Copies

Section 27 of the CDPA 1988 provides a large scope for the definition of an infringing copy. Anything made or imported to the UK that is a believed to be a copy of or breach of copyright, will be an infringing copy. For example, if someone were to illegally download a film and hold a copy of this on their computer, they would be in possession of an infringing copy.

Primary or Secondary Infringement?

Primary infringement (CPDA 1988 sections 16 to 21) is most commonly found where the copier has simply copied the work of the author. It’s not necessary for there to have been direct access to the original since the law implies the ‘Presumption of Copying’. That is to say if you can demonstrate that the copier had the opportunity to copy the work and that their work is so similar to the original, the most likely conclusion is that the work is a copy, and an inference of copying is formed.

If the copier can prove that at no time did they have access to the work, then they won’t be liable.

A handy note: copying can be indirect and you’ll have a claim for primary infringement even if the copy is not of the original or a derivative.

Secondary infringement (CDPA 1988 sections 22 to 26) is about dealing with or facilitating the manufacture of ‘infringing copies’. The CDPA 1988 allows the victim protection not only from the infringer, but also any person who allows, provides or suspects that their premises or equipment are being used to manufacture infringing copies or house unauthorised performances.

Second infringement hinges on knowledge. There has to be actual or a reasonable belief that they were dealing with an infringing copy for liability to be attached.

You’ve Got Grounds for a Claim, so What Remedies are Available to You?

Like any other civil claim, a copyright action has as whole host of options available to compensate for the breach. The court may award you damages, an injunction, account of profit or Order for ‘Delivery Up’.

Damages are normally awarded in the sum of any licence fee, which could have been requested by the author. This isn’t available where there is an ‘innocent infringer’, who can show they had no knowledge or reason to believe they were in breach.

An injunction is a very common remedy for copyright infringement. Common at interim hearing stage, an injunction will stop the infringer from their actions. However, it won’t be awarded in conjunction with damages.

An account of profit is a broad alternative to damages, which doesn’t have the restriction of the ‘innocent infringer’. The issue here is the profit made - if there’s little or no profit, the account will be small and you’d be unable to reclaim substantial damages.

An Order for Delivery Up instructs the infringer to provide to the court or the victim all copies of the work they’ve reproduced. In conjunction there is the right to seize offending articles, but this can only be applied to market or street traders.

Talk to an Intellectual Property Right Specialist

There are various options open to you with regards to a copyright infringement. Whilst this will give you an overview of foundations and options available when claiming, it’s always best to talk to an intellectual property right specialist before lodging a claim. If you wish to find one, the law society ‘Find a Solicitor’ tool will be able to provide you with a list.